Open-Ended Continuity in RICO: Threat of Continued Racketeering in a Single-Victim Smear Campaign

Introduction

Jason Hartman, a real-estate investment professional and podcaster, brought suit against a business rival, Charles Sells, and several associates (including Sells’s wife, Elena “Lena” Cebotari Sells, digital marketer Young Chung, and marketing coordinator Stephanie Putich) over a coordinated online “smear campaign.” Plaintiffs alleged the defendants engaged in trademark infringement, cybersquatting, false advertising, unfair competition, invasion of privacy, and civil and federal RICO violations by registering confusingly similar domain names, publishing false and defamatory webpages and email “blasts,” and obstructing Hartman’s efforts to shut the scheme down. After summary judgment disposed of certain counts, a jury in the Southern District of Florida awarded Plaintiffs substantial damages, trebled under RICO. On appeal to the Eleventh Circuit, Defendants challenged the sufficiency of the evidence on several grounds—most centrally that the RICO “pattern” failed for lack of an indefinite threat of repetition—and moved alternatively for a new trial or remittitur.

Summary of the Judgment

The Eleventh Circuit affirmed. It held that:

Open-ended Continuity: Even a relatively short-lived, single-victim scheme can meet the RICO “pattern” requirement if the evidence shows a threat of ongoing criminal activity indefinitely into the future. Here, the jury could reasonably infer that Sells aimed not just to destroy Hartman’s existing businesses but to “crush” him emotionally, that the campaign boosted PIP Group’s revenues, and that concealment efforts continued after Hartman obtained a takedown. Those facts supported open-ended continuity under H.J. Inc. v. Northwestern Bell Tel. Co. and Jackson v. BellSouth Telecommunications.
Conspiracy Liability: A minor participant need not commit every predicate act. Because the jury heard evidence that Lena paid invoices for website and email work, was copied on internal emails about the scheme, and shared the animus against Hartman, a reasonable juror could find she knowingly agreed to the RICO enterprise—even if her role was limited.
Harmless Error on Substantive Counts: Any error in denying judgment as a matter of law on trademark‐infringement or false‐advertising counts was harmless, since the treble‐damages award rested on the valid RICO conspiracy verdict alone.
New Trial and Remittitur: The district court did not abuse its discretion in denying a new trial or remittitur. The award of $9 million in trebled RICO damages, plus $3.5 million against Lena for invasion of privacy, was supported by expert testimony, lost‐business evidence, and the jury’s credibility determinations.

Analysis

1. Precedents Cited

The court’s analysis revolved around seminal RICO cases and key Eleventh Circuit decisions:

H.J. Inc. v. Northwestern Bell Telephone Co. (492 U.S. 229 (1989)) – Established that RICO “continuity” may be closed‐ or open‐ended, and that open-ended continuity can be shown by a threat that the racketeering activity will continue indefinitely.
Jackson v. BellSouth Telecommunications (372 F.3d 1250 (11th Cir. 2004)) – Held that to prove open-ended continuity, a plaintiff must show the acts were part of the defendants’ regular way of doing business or threatened repetition in the future.
United States v. Browne (505 F.3d 1229 (11th Cir. 2007)) – Emphasized that few acts close together can still satisfy open-ended continuity if they demonstrate a threat of ongoing wrongdoing.
Silva v. Dos Santos (68 F.4th 1247 (11th Cir. 2023)) – Confirmed that a factfinder may use non‐credible testimony as substantive evidence against the witness’s own interests.
United States v. Sosa (777 F.3d 1279 (11th Cir. 2015)) – Clarified that a defendant need only know the essential nature of the conspiracy and need not commit every predicate act personally.

2. Legal Reasoning

(a) Pattern of Racketeering Activity:
RICO requires at least two predicate acts within ten years that are related and demonstrate continuity. The Supreme Court in H.J. Inc. distinguished “closed-ended” continuity (a series of related acts over a substantial period) from “open-ended” continuity (a threat that racketeering will persist indefinitely). Here, although the smear campaign spanned only months, the jury could believe facts suggesting no natural end—Sells’s personal animus (“crush this douche”), the scheme’s positive effect on PIP’s revenues, and elaborate concealment efforts—pointing to indefinite threat. That satisfies open-ended continuity under Jackson and Browne.

(b) Conspiracy and Enterprise:
A RICO conspiracy under 18 U.S.C. § 1962(d) requires an agreement to commit predicate acts in furtherance of the enterprise. Under Sosa, a conspirator need not personally commit every act; knowledge of the scheme’s overall objective suffices, and minor roles are enough if the defendant knowingly participates. Documentary evidence showed Lena approved payments, was looped in on scheme‐related emails, and shared Sells’s hostility. The jury reasonably rejected her denials.

(c) Harmless Error Doctrine:
Even assuming the district court erred in denying judgment as a matter of law on trademark infringement or false advertising, the treble damages award under § 1964(c) rested solely on the RICO conspiracy verdict. Plaintiffs did not receive duplicative relief, so any error was harmless.

(d) New Trial/Remittitur:
The court’s refusal to grant a new trial or remit damages is reviewed for abuse of discretion. The jury heard expert testimony quantifying lost revenues (~$3.8 million), corrective‐advertising estimates (~$1.6–$1.8 million), and testimony from former clients who renegotiated or ceased deals. The court correctly concluded the final $12.5 million award did not shock the conscience or derive from passion/prejudice.

3. Impact

This decision clarifies that:

A single-victim, single-scheme RICO case can meet the open-ended continuity requirement if the evidence suggests an ongoing threat—especially when concealment efforts and personal animus underpin the enterprise.
Minor or indirect participants (e.g., paying invoices, receiving scheme‐related communications) can be RICO conspirators so long as a jury reasonably infers knowing participation in the overall objective.
A treble‐damages award under RICO § 1964(c) need not be vacated for harmless errors on ancillary claims when the core RICO verdict independently supports the amount.

Complex Concepts Simplified

RICO “Pattern” Requirement: To sue under RICO, a plaintiff must prove at least two “predicate acts” (e.g., mail fraud, wire fraud, trademark infringement) that are related and show continuity. Continuity can mean a long‐running series of wrongs (closed-ended) or a threat that the criminal activity will continue indefinitely (open-ended).
Open-Ended Continuity: Even if only a few bad acts occur close together, you can meet this test if the scheme could easily continue forever unless legally stopped. Here, secret domain registrations, false emails, and offshore hosting suggested such a threat.
Conspiracy Liability: You do not have to pull every trigger in a criminal plot to be a conspirator. If you know the plot’s purpose and play a meaningful support role—like paying bills or reviewing materials—you can be held liable alongside the leaders.
Judgment as a Matter of Law (JMOL): After a jury verdict, a defendant can ask the judge to say: “Even viewing the evidence most favorably to the plaintiff, no reasonable jury could find for them.” Here, the court denied JMOL because a reasonable jury could find open-ended continuity and Lena’s participation.
New Trial/Remittitur: If a verdict seems against the great weight of the evidence or the damages “shock the conscience,” a court can order a new trial or reduce the award. That remedy is granted only for clear abuse of discretion, which was not shown here given expert and fact testimony on harm.
Harmless Error: When an appellate court finds a trial court erred but the error did not affect the final outcome, the verdict can be affirmed anyway. Here, any mistake on non-RICO counts did not alter the treble RICO damages based on the valid conspiracy count.

Conclusion

Jason Hartman v. Charles Sells reaffirms that RICO’s “pattern” element can be satisfied by a focused, single-victim scheme when there is evidence of an indefinite threat of repetition. The decision underscores that minor actors may be conspirators if they knowingly support the enterprise, and that appellate courts will uphold robust treble-damages awards absent a showing of prejudice or passion. For plaintiffs seeking to invoke RICO in online defamation, trademark, or unfair-competition contexts, this case charts a clear path for establishing open-ended continuity and validating large-scale remedies.